Research On Institutional Construction Of Grant Condition Defense In Patent Infringement Lawsuit

The patent law requires that the object to be protected must meet the patent grant conditions,and the technology or design that does not meet the grant conditions should not fall into the scope of patent protection.If the defendant implements a technology or design that does not meet the licensing conditions,it will violate the basic principles of the patent law to allow the holder of the improperly licensed defective patent to exercise the right to claim.China adopts the dual structure of patent infringement and validity judgment,and the court has no right to judge the validity of patent right only by the administrative department correcting improper authorization through invalidation procedure.Under the single administrative right system,the invalidation procedure nested in the infringement lawsuit leads to circular litigation and other abuses,which have long been criticized by the academic circle.However,the scope of direct relief to the defendant in the judicial path is very limited,which causes the prior art(design)defense not only to extend to the analogical application of the conflict claim,but also to introduce limited creative review.In the case that the object involved in the case obviously should not be protected by the patent law,it should limit the exercise of the defective patent right,and provide the defendant with a more efficient judicial remedy path.With the emergence of centralized jurisdiction of intellectual property cases,technical fact-finding mechanisms,and the unified appellate mechanism of the Supreme People’s Court,the opportunity to incorporate other easily grasped grant conditions into the defense has come.In order to alleviate the litigant’s burden,it is necessary to further construct the system of grant condition defense,that is: in patent infringement disputes,if the defendant can prove that the technology or design it implements obviously does not meet the grant conditions,the court can directly determine that the infringement charges are not established on the basis of the defense of grant conditions.For example,if the accused infringing technical scheme or design is obviously not creative,belongs to the object not granting patent right or there is a conflict of rights,it should not fall into the scope of patent protection,and it is legitimate to directly remedy the defendant by means of the legal right of defense.The defense of grant condition is a reasonable choice to solve the dispute of defective patent infringement under the background that the judicial right system cannot be formed for a long time in China.Different from the patent invalid defense under the foreign judicial system,the only object of evaluation for the defence of grant conditions is the alleged infringement and does not involve the determination of the validity of the patent involved.Therefore,the defense of grant conditions can achieve the same non-infringement effect as the declaration of patent invalidation under the premise of not shaking the single administrative right system.It has the same root as the defense of prior art(design)and has the same idea as the defense of patent invalidation.This paper is divided into four chapters,and the contents are concluded as follows.The first chapter starts with the cause of establishing the system of grant condition defense,systematically analyzes the remedy path that the defendant who implements improper granted technology or design can seek,investigates the practice trend of judicial certainty system in foreign countries,and points out the dilemma of serious malpractice of administrative path and limited scope of the judicial path under the single administrative certainty system in China.On this basis,the research idea of substantial resolution of defective patent infringement disputes by means of defences is established.Chapter two clarifies the connotation and principle of the defense of grant conditions,and points out the application limitation of defense of grant conditions.The defense of grant condition is the right of defense that the party could enjoy according to the basic principle of patent law against the patentee’s right of claim,whose application is limited to “patent infringement disputes” and whose conclusion is only valid in individual cases.The “grant conditions” only refers to the conditions that the invention should meet,excluding the formal and procedural conditions of patent application.At the same time,the application scope of the grant condition defense must be limited to the circumstances where “the infringements obviously do not meet the grant condition”.In terms of implementation effect,the defense of grant conditions can restrict the exercise of the defective patent right and prevent the improper expansion of the patent right.The third chapter demonstrates the necessity and rationality of the institutional construction of grant condition defense.In the patent infringement lawsuit,the court really needs to deal with the case that the object involved is obviously not protected,and the defense of grant condition is a reasonable choice under the absence of the judicial right system.The scope of application of “obviously not in conformity with the conditions of grant” is not only scope to ensure that the court can hear the case correctly,but also a scope to avoid the conflict between the court and the administrative department.Depending on the specialization of the intellectual property adjudication system,especially the unified acceptance of patent civil and administrative appeals by the Supreme People’s Court,the conditions for constructing the system of grant condition defense are permitted.Chapter four discusses the applicable types of the defense of grant conditions.“Grant conditions” must meet two standards: First,the judgment object is only the infringement being sued;Second,it meets the requirement of “obviousness”,that is,the examination difficulty of this requirement does not exceed the examination ability of the court.For the elements such as conflict of rights and public order nuisance,due to they do not involve technical issues and are easy to grasp,the review in the judicial path is in line with their nature and laws.Because the court has certain examination ability and supporting conditions,it is feasible to rely on a supporting system such as a technical investigator to review the more complicated grant conditions such as the definition of the examination object.As for the creative elements with the highest examination difficulty,only the simple case of “obviously not creative” among them can be included in the defense of grant conditions,such as the sued infringing technology scheme is a simple superposition of existing technology.